Opinion: When ‘free speech’ becomes a bully’s free pass

Opinion Yesterday 

Editor’s Note: Kara Alaimo, PhD, an associate professor of communication at Fairleigh Dickinson University, writes about issues affecting women and social media. Her book “Over the Influence: Why Social Media Is Toxic for Women and Girls — And How We Can Take It Back” will be published by Alcove Press in 2024. The opinions expressed in this commentary are her own. 

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Last week, the Supreme Court issued a ruling that makes it harder to hold people responsible for harassment. The court reversed the conviction of a man for stalking and inflicting “emotional distress” on singer Coles Whalen, finding that online harassment is protected by the First Amendment unless the perpetrator disregards a “substantial risk that his communications would be viewed as threatening violence.”


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While the court may claim to be defending free speech by ruling that the threats were protected by the First Amendment, the decision is likely to have the opposite effect — it will censor and silence the victims of harassment.

Getting the balance right between free speech and protecting people from abuse is tricky, in court and beyond.

An example of how important it is to get it right occurred at the University of Chicago, where lecturer Rebecca Journey postponed teaching her course “The Problem of Whiteness” after a male student at the school, Daniel Schmidt, organized an online campaign targeting her.

Schmidt posted Journey’s photo and email address along with the claim that “anti-white hatred is now mainstream academic inquiry.” Afterward, Journey was deluged with hate emails, including one which said, “blow your head clean off.” Journey postponed the class, which Schmidt described on Twitter as a “huge victory.” When it was offered in March, the university had to hold it in an undisclosed location and implement additional security protocols.

So it’s clearly urgent for institutions to strike the right balance in protecting the free speech of critics without allowing them to chill the free speech of those with whom they disagree.

There are stark differences between the Supreme Court’s opining about the government’s ability to criminally prosecute people for harassment and a university, particularly a private one, making decisions when it comes to protecting its scholars or regulating student conduct. One does not directly affect or change the other; rather, both speak to a broader social problem that can’t be brushed away and forgotten by an appeal to the First Amendment: Too often, protecting free speech feels like a one-way street.

Schmidt’s actions here are neither comparable to those perpetrated in the case heard by the court nor should they be prosecutable, but the court’s opinion falls at a moment when universities (even private ones) are increasingly — and understandably — concerned about how the political climate outside their walls can impact policy choices they make.

The Supreme Court may have been trying to protect free speech by instituting a higher standard for someone to be punished for online harassment, but its recent ruling will do the reverse. It sends a symbolic message that protecting freedom of speech requires tolerating lower-level harassment speech, which often intimidates speakers into silencing themselves. So whose speech remains free? In my forthcoming book, I find that when women and girls are victims of online harassment, they often respond by censoring what they post and shuttering their social media accounts.

When that logic gets extended to campus life, what these kinds of so-called free speech policies really do is protect the speech of bullies, while inhibiting the ability of their victims to participate freely in public discourse without fear.

That’s why private institutions need policies that provide more protection than that offered by the court. The University of Chicago’s declaration of free speech principles, often referred to as the Chicago statement, has been used as a model for other schools. (This statement far predates the Supreme Court’s recent ruling, but it seems fair to say that proponents of the statement might see affirmation in how the court came down.)

Free speech is crucial to academic discourse, but something is wrong with a statement of “free speech” that allows courses to be censored due to online harassment of their instructors.

According to The New York Times, the University of Chicago dismissed a complaint made by Journey about Schmidt’s behavior. The university said privacy concerns precluded it from discussing the case but that it has policies against student “harassment, threats or other misconduct.” Schmidt, for his part, said he didn’t encourage anyone to harass Journey. But Journey pointed out that, because the university didn’t punish Schmidt, “there’s no deterrent effect.” She’s exactly right.

If the University of Chicago and other schools allow these kinds of campaigns against instructors, some professors — especially those without tenure — will avoid discussing critical topics such as race out of fear for their personal security and their careers.

The potential consequences of such threats were recently driven home when a professor and two students were stabbed in a class on gender at the University of Waterloo in Canada in an incident that police say was motivated by hate.

In my book, I argue that many of these kinds of real-world acts of violence are happening because the abuse against women that is tolerated online is reshaping our society’s views of appropriate behavior.

The Supreme Court’s newly declared permissiveness toward online harassment is only likely to embolden more of it. This makes it all the more critical for universities to try to play a role in teaching people how to engage in respectful debates.

But behavior like that of Schmidt does the opposite: It bullies people into silence. That’s why schools shouldn’t allow students to wage personal campaigns to intimidate their teachers.

Similarly, on my own course syllabi, I state that students cannot record or quote from class sessions without written permission. This ensures that students feel comfortable expressing their views — or talking through arguments they haven’t fully formed — without fear that they’ll be quoted by their classmates online and come under the same kind of attack as Journey. All universities should ensure that their faculty members are free to institute such policies, or consider blanket policies to this effect.

The Supreme Court and University of Chicago seem to be blind to the way that tolerating harassment often reduces the free expression of the victims of such abuse. But now that the court has weakened protections against harassment, it’s up to private universities to lead the way and institute policies that ensure all of us — not just bullies — feel free to debate our views.

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